Son of ACTA: meet the next secret copyright treaty

So many countries in need of the Digital Millennium Copyright Act, so little time! The US government, still trying to secure final passage for the drafted-in-secret Anti-Counterfeiting Trade Agreement (ACTA), has already turned its attention to a new multilateral trade agreement that will bring the wonders of the DMCA to countries like Australia, Brunei, Chile, Singapore, Malaysia, and Vietnam.

The new Trans-Pacific Partnership (TPP), like the ACTA before it, had its intellectual property chapter drafted by the US. Once again, the chapter was drafted in secret and has been classified for at least four years after negotiations end. The agreement exports (nearly verbatim) the DMCA's rules on digital locks, ISP liability, and subscriber disconnections, with a few extra goodies on the side.

TPP has been in the drafting stage for some time, but the US intellectual property chapter (PDF) only leaked yesterday. Canadian law professor Michael Geist calls it "everything [the US] wanted in ACTA but didn't get."

"For example," he says, "the digital lock rules are the US DMCA, complete with [the] exact same exceptions (no more, no less). The term of copyright matches the US term of life of the author plus 70 years, beyond the Berne requirement and Canadian law. The ISP provisions including a copy of the US notice-and-takedown system as well as provisions that go beyond US law. In other words, the US envisions using the TPP to export its copyright law to as many countries as possible while creating backdoor changes to its own domestic laws."

The draft contains only a "placeholder" section for limitations and exceptions such as fair use, but it contains plenty of detail on enforcement. Every TPP country must create "legal incentives for [Internet] service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials." ISPs must cut off access to "repeat infringers" of copyright. And bypassing DRM is only permissible for good-faith security and privacy research, or if you run a library.

The chapter requires criminal penalties against anyone who uses "an audiovisual recording device to transmit or make a copy of a motion picture… In a public motion picture exhibition facility.” All countries must provide a "making available" right to copyright holders, such that simply offering a file through BitTorrent would be grounds for a lawsuit even if no one downloaded the file. Boxes meant "primarily" for descrambling cable and satellite transmissions would be illegal and subject to criminal penalties.

Any country could adopt tougher copyright and patent penalties than those in the TPP, but no signatory could do anything less. This follows a consistent international pattern in which protection and enforcement standards are always mandatory, while exceptions and limitations are usually optional.

Knowledge Ecology International (KEI), which obtained the leaked document, also notes that "copyright damages shall consider the suggested retail price or other legitimate measure of value submitted by the right holder" in court cases. And all countries must set up a process to identify "Internet users for any ISP, going beyond US case law."

Calling for Congress

While KEI has numerous concerns about the content of the leaked chapter, it has a larger concern about the process by which such chapters are drafted and negotiated. As with the ACTA, by the time the negotiators release a text for public comment, few major changes are still possible.

"The document has been distributed to all member states participating in the TPP negotiations, so it is not secret from any of the parties in the negotiations. The document may also be subject to review by the hundreds of corporate insiders who serve on USTR [US Trade Representative] advisory board. It is, however, secret from the taxpayers and voters who live in the United States, and people everywhere who are going to live under the new norms…

"KEI objects to the policy of making the negotiating text of intellectual property agreements secret, particularly when the documents are distributed to all parties in a negotiations, and thus are only secret from the public. The Congress needs to intervene and require that such texts be made public routinely."